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Washington, D.C.—In response to concerns raised by the two unions representing tens of thousands of Department of Homeland Security (DHS) employees, DHS has made some positive changes in its proposed nondisclosure policy, but there continues to be the potential for the misuse of an “for official use only” designation for sensitive but unclassified and other materials, the leaders of the unions said today.

Presidents Colleen M. Kelley of the National Treasury Employees Union (NTEU) and John Gage of the American Federation of Government Employees (AFGE) applauded the DHS decision that employees would not have to sign a nondisclosure agreement.

The union leaders had earlier warned that the nondisclosure agreement would impose “unprecedented restrictions and conditions” on employee free speech rights. In addition it apparently would have allowed the government unprecedented leeway to search employee homes and personal belongings. DHS contractors and consultants would still be required to execute the agreement.

At the same time, Kelley and Gage expressed their concerns that a companion document proposed by DHS—Management Directive 11042.1 (“Safeguarding Sensitive But Unclassified [For Official Use Only] Information”—still allows for a very broad definition of materials as “for official use only,” and may continue to present First Amendment issues. That document would continue to apply to employees, as well as to contractors and consultants.

They warned that even though DHS said it plans training on the safeguarding of sensitive information designated as “for official use only,” the directive still covers a broad and vaguely defined universe of information. It opens up the possibility of using the designation to cover up misconduct, among other things.

The union leaders initially raised their concerns in a joint letter in late November to DHS Secretary Tom Ridge, calling on him to turn his personal attention to the matter.

Kelley and Gage, in that letter, maintained that the thousands of front-line border security officers represented by NTEU and AFGE fully appreciate the need to safeguard classified and other highly-sensitive information. As they explained, the nondisclosure agreement and accompanying directive likely would undermine national security and the public interest by suppressing whistleblowing and discouraging dissent.

At the same time that the union presidents raised their concerns with Secretary Ridge, the general counsels of both unions sent a lengthy letter to DHS General Counsel Joe Whitley outlining what the union lawyers described as “significant constitutional violations” arising out of the nondisclosure agreement. .

“We are pleased that DHS heeded our concerns regarding the nondisclosure agreement,” the union leaders said, “and we look forward to working with the department on adequate and appropriate training that ensures the First Amendment rights of our members are protected.”

NTEU and AFGE are the two largest unions representing DHS employees.